State v. Brewer

209 S.E.2d 391, 23 N.C. App. 543, 1974 N.C. App. LEXIS 2147

Opinion

BALEY, Judge.

Defendant assigns as error the form of the court’s instruction to the jury concerning his failure to testify. While an instruction more nearly in the language of G.S. 8-54 is preferable, State v. Powell, 11 N.C. App. 465, 181 S.E. 2d 754, cert. denied, 279 N.C. 396, 183 S.E. 2d 243, the court used language which clearly conveyed to the jury that the failure of defendant to testify was not to create any presumption against him. The identical words used by the court in this case.

“The same law also assures him that his decision not to testify will not be used against him. Therefore, you must be very careful not to allow his silence to influence your decision in any way.”

were held not to be prejudicial in State v. House, 17 N.C. App. 97, 98, 193 S.E. 2d 327, 328, and State v. Phifer, 17 N.C. App. 101, 103, 193 S.E. 2d 413, 414, cert. denied, 283 N.C. 108, 194 S.E. 2d 636.

Defendant also complains that the court improperly sustained the objection of the State to questions propounded to a State’s witness on cross-examination. There are no answers in the record from which this Court can determine if any testimony excluded on cross-examination would have been prejudicial, State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342, and the questions themselves call for highly speculative opinion on the part of the witness. See generally 1 Stansbury, N. C. Evidence 2d (Brandis rev.), § 122.

No error.

Judges Britt and Hedrick concur.